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How the abortion vote in Kansas may determine the future right in the state

Kansas voters on Tuesday will decide on a constitutional amendment that will determine the future of abortion rights in their state — the first time anywhere in the U.S. that voters will cast ballots on abortion since the Supreme Court overturned Roe v. Wade last month.

A ballot question, known as the “Value Them Both Amendment,” asks voters to decide whether the state’s Constitution should continue to protect abortion rights. The proposed amendment to the state Constitution would remove language that guarantees reproductive rights and asks voters if they prefer to put the issue of abortion in the hands of the state’s Republican-controlled legislature — an outcome abortion advocates say is all but certain to result in the elimination or curtailment of those rights. 

A “yes” vote on the measure would remove from the state Constitution the right to an abortion and hand the issue back to the state legislature. A “no” vote on the measure would make no changes, keeping abortion rights enshrined in the state Constitution.

Anti-abortion activists argue the Kansas ballot question creates an opportunity to put the issue in the hands of the voters via elected state lawmakers. Supporters of abortion rights warn that approval of the ballot measure would almost certainly result in the elimination or curtailment of existing rights in a state that has more lenient laws on its books compared to many of its neighbors.

“With federal abortion rights overturned, Kansas lawmakers are saying, ‘We need to change our state Constitution so it no longer protects abortion rights, so that we can go ahead and ban or restrict abortion now that we’re legally allowed to,’” Elizabeth Nash, a state policy analyst at the Guttmacher Institute, a research and policy organization that promotes reproductive rights, said in a recent interview. “If the Kansas Constitution no longer is deemed to explicitly protect abortion rights, an abortion ban would sail through the legislature.”

Image: US-POLITICS-ABORTION-VOTE-KANSAS
Supporters of Value Them Both, a constitutional amendment that would remove language guaranteeing the right to an abortion from the Kansas state constitution, rally before campaigning in Shawnee on July 30, 2022.Caitlin Wilson / AFP – Getty Images

The ballot question has been planned for more than a year, but it’s taken on greater significance in the weeks since the Supreme Court overturned Roe v. Wade in June, ending the federal constitutional right to an abortion.

Early voting in the state kicked off in mid-July, and the Kansas secretary of state’s office reported that, as of last Tuesday — more than twice as many people had already cast early ballots than at the same point during the last midterm primary election in 2018.

Tuesday’s vote on the measure is expected to be close. 

While polling has been sparse, the Kansas City-based firm co/efficient found in a July survey that 47% of respondents said they planned to vote “yes” on the question to remove the right to abortion from the Constitution and let the legislature decide on abortion rights, while 43% said they planned to vote “no.” Ten percent were undecided. Groups on both sides of the issue have blanketed Kansas airwaves with millions of dollars in ads.

The measure seeks to supersede a 2019 ruling by the Kansas Supreme Court that said the state’s Constitution guaranteed the right to have an abortion. Doing so would allow the state legislature to pass laws restricting or banning abortion.

Abortion rights advocates have claimed there are several factors working against them, including the phrasing of the ballot question and the timing of its placement.

For one, they have expressed concern the ballot measure features language they argue is intentionally designed to confuse voters. For example, the language used on the ballot says that a “yes” vote on the question would affirm that “the constitution of the state of Kansas does not require government funding of abortion” — even though no such requirement exists — “and does not create or secure a right to abortion.” A “yes” vote would affirm that “the people, through their elected state representatives and state senators, may pass laws regarding abortion,” something lawmakers are limited in doing now based on the 2019 court ruling.

Abortion rights advocates support a “no” vote on the measures, which makes no changes to the status quo.

Abortion rights advocates also expressed worry that putting the issue before voters during a primary instead of the general election would significantly depress turnout for voters more likely to support reproductive rights — although the secretary of state’s early voting numbers suggest that may not be the case.

In addition, they have also noted that unaffiliated voters in the state — who aren’t allowed to cast ballots in primaries for the two major political parties — may not realize they can still vote on the ballot question.

“Everything about how this effort was crafted was done so in a way that obscures that end goal,” Ashley All, a spokeswoman for Kansas for Constitutional Freedom, a pro-abortion rights group that has been helping to lead efforts to oppose the amendment, told NBC News in a recent interview.

Abortion rights proponents have argued that with Roe gone, the stakes are far too high to put the issue in the hands of state GOP lawmakers. They point to several recently proposed bills that would restrict or ban abortion — including one introduced in March — that they say would certainly be re-introduced in upcoming state legislature sessions if the Kansas ballot initiative is successful.

Conversely, abortion opponents maintain it is more democratic to have the issue decided by voters, via their representatives. Many reject the suggestion that they are seeking more restrictive abortion laws.

“This is not a ban on abortion,” Republican state Rep. Tory Marie Arnberger, a supporter of the initiative who helped get it on the August ballot, told NBC News in a recent interview. “I am a fan of each state having their own regulations on abortion. With Roe v. Wade being overturned, that is now each state’s right, and I think it’s up to each state legislature to decide what is best for their state,” she added.

Abortion in Kansas is legal up until about the 22nd week of pregnancy, according to the Guttmacher Institute. Under state law, women seeking abortion care are subject to several regulations such as a 24-hour waiting period between seeking consultation and receiving the procedure and parental consent for minors.

Still, the rules are much less restrictive than those in neighboring states. In Missouri and Oklahoma, laws went into effect almost immediately after the Supreme Court ruling in late June that effectively banned nearly all abortion care in those states. 

At least 22 states have already banned or will soon prohibit abortion. The new landscape makes Kansas a regional outlier and a safe haven for women in and out of state seeking abortion care — but that could diminish or disappear if the measure passes.

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